Hauterman & Van Laudegam v. Bock

[369] By the Court. Hilton, J. The judgment was clearly right. The defendants failed to show any, title• whatever to the segars, while on the other hand the plaintiffs proved conclusively by the production of the bills of lading, the possession of which they had never parted with, that they were the shippers and owners of the property claimed. The right of a shipper to revoke a consignment, after the shipment has been made and a bill of lading making the goods deliverable to a consignee by name has been signed, and before the bill of lading is delivered to the consignee, cannot be questioned either on principle or authority, because, until the hill of lading is parted with, no title to the property. nor any right to the possession or ownership, passes from the owner or shipper. (Abbott on Shipping, [7 Am. ed.] 433.) By inserting the names of the defendants as consignees, they derived no property in the segars or title or interest in them nor any right to their possession, until effect was given to the act by delivery to them of the bills of lading, by the plaintiffs or some one on their behalf, and by their authority. The plaintiffs certainly had the right to direct the consignment, and might have named the defendants as consignees in anticipation of making some intended negotiation respecting the segars; but whether this be so or not it is manifest that they never carried into effect their intent at the time of the shipment, by delivering- or transmitting the bills of lading to the defendants. (Lickbarrow v. Mason, 2 Term R., 71; Ilibbert v. Carter, 1 Id. 747; Buffington v. Curtis, 15 Mass., 526.; Low v. Wolf, 8 Pick. 301; Allen v. Williams, 12 Id. 297.) It is frequently the case that the name of the consignee is left blank in the bill, and it wmild be absurd to say when goods are thus shipped that the mere insertion of a name in the blank thus left would divest the owner of his title and control over them. By the law merchant the bill is regarded as a muniment of title to the property described in it, (1 Parsons on Maritime-Law, 35S,) and when it is in the possession of the consignee he is presumed to he the owner, (Everett v. Saltus, 15 Wend., 474; afarmed 20 Weml. 2-67,) but no such presumption in favor of the consignee attaches to a bill found in the possession of the shipper. (Abbott on Shipping, [7 Am. Ed.] 435, 669, 654.) [370] Upon these views it is unnecessary to' inquire whether the notice referred to was sufficient to predicate ■ the claim of the plaintiffs to stop the goods. But in any aspect, it seems to me the motive would not be a matter for material consideration, as it appeared at the trial that the goods had not up to that time come to the actual or constructive possession of the defendants. As is said by Chancellor Walworth, in Mottram v. Heyer, (5 Denio, 631): “ The removal of the goods from the “ vessel to the public store by the Custom House Officers “ until the consignee should entitle’the owners to claim the “ possession and disposition of the goods by completing their “ entry by the payment of the duties, was merely substituting " the public store in the place of the vessel as a place of deposit “ in the transmission of the goods to their place of destina- “ tian.” Here there was no evidence that the defendants had ever entered the goods at the Custom House, or paid any duties upon them. Therefore the public store was to be regarded as a place of deposit connected with the transmission, and it is well settled that as to goods thus deposited the right of a consignor to stop in transitu attaches. (Mottram v. Heyer, supra., Buckley v. Furniss, 15 Wend. 137; Cornell v. Hitchcock, 23 Id. 611; Abbott on Shipping [7 Am. Ed.] 664; Northey v. Field. 2 Esp., N. P. C. 613 ; 1. Parson’s Maritime Law, 352.) The consignee having no right to the goods until he pays the duties, it cannot be said when such payment has not been made, that he has ever acquired either actual or constructive possession of them. Judgment affirmed.